The UK Supreme Court has unanimously allowed the UK Government’s appeal in R (Jwanczuk) v Secretary of State for Work and Pensions ([2025] UKSC 42). In doing so, it reaffirmed its commitment to the widely-criticised approach to proportionality review espoused in its SC judgment ([2021] UKSC 26) and attached little weight to disability as a suspect ground of discrimination under Article 14 of the European Convention on Human Rights (“ECHR”). The decision perpetuates a considerable reshaping of how judges approach justification review under the Human Rights Act 1998 (the “HRA”) and sets an impracticably high threshold for claimants to meet; this, it is suggested, is regrettable. It is clear that SC will continue to cast a long shadow over domestic Article 14 claims.

Background

The claimant’s deceased wife lived with Ullrich Congenital Muscular Dystrophy throughout her life. Her disability, paired with a serious accident in early adulthood, meant that working was impossible. At the time of her death, she had not made any national insurance contributions (“NICs”), as these are normally paid by employees along with income tax, specifically to fund state benefits.

The claimant, the surviving spouse, applied for bereavement support payments (“BSP”) – a welfare payment for the costs of unexpected bereavement – and was rejected. The Pensions Act 2014 (the “PA 2014”) required for a deceased spouse to have paid NICs in at least one tax year for their surviving spouse to qualify for BSP. The claimant applied for judicial review of the decision, for being discriminatory on the basis of disability by association (Molla Sali, [7]). Both the Administrative Court and the Court of Appeal found that the relevant sections of the PA 2014 were incompatible with the prohibition on discrimination in Article 14 ECHR, read with the right to peaceful enjoyment of property under Article 1 Protocol 1.

Calibrating review

The judgment was right to recognise the case as one of Thlimmenos discrimination; “a failure to treat differently persons whose situations are materially different” ([119]). It accepted that the discrimination against the claimant was because he was “the surviving partner of a person with a lifelong inability to work through disability” (i.e., associative discrimination) ([109]), being in a materially different position to those widowers whose deceased spouse had not made NICs “for reasons other than a lifelong inability to work” ([119]).

Nonetheless, to explain its adoption of the “widest margin of appreciation” and dismissal of arguments for greater intensity of review ([138]-[139]), the Court eschewed its acceptance of those (uncontroversial) premises. In a volte-face, the Court said that the disentitlement to BSP is not “based on disability itself”, that the connection between disentitlement and disability is “weak”,and that most disabled people could in fact work ([141]). The judgment stressed that Parliament did not intend to discriminate against disabled people ([142]), highlighting the legislation’s aim of promoting the “contribution principle” in order to encourage, and reward those striving for, work ([144]). Taken together, this meant problems of “stereotyping, stigma, and social exclusion”which may have demanded intense review were not relevant ([140]).

The Court’s characterisation of the facts reveals an unduly formal approach to Article 14. While potentially relevant for displaying a legitimate aim for the discrimination, Parliament’s lack of discriminatory intent and the fact that the rule is prima facie neutral (applying to all those who do not pay NICs, not just the severely disabled) is immaterial for the question of whether the kind of discriminatory impact experienced is one which requires “very weighty reasons” for justification. Discrimination against disabled people is such a case (Guberina). 

Incommensurability

The above reasoning and the Court’s “maximal deference” to Parliament is explained, though not justified, by the Court’s increasingly entrenched view on legal adjudication of Convention disputes. Citing SC in an eyebrow-raising passage, the Court explains this view: that the question of proportionality “cannot be answered by any process of legal reasoning because there are no legal standards by which a court can decide where the balance should be struck” ([152]).

Incommensurability – the problem of having no common standard to weigh individual rights against social policy objectives – is a familiar challenge to judicial decision-making. The Court’s position in Jwanczuk is a legitimate conceptual objection to proportionality assessments and should be dealt with seriously by those who disagree. A judgment dealing with a domestic challenge under the HRA, however, is an astonishing place for the incommensurability objection to be raised (as it is now being done repeatedly).

In enacting the HRA, Parliament incorporated the ECHR into domestic law and required courts to not only enforce the ECHR but to “take into account” the ECtHR’s case law when doing so (s. 2). The text of the ECHR and the ECtHR’s jurisprudence is built atop the premise that judicial proportionality assessments are legitimate and necessary. In other words, the Convention takes as its starting point that incommensurability is not a fatal problem. Through the HRA, Parliament expressed its agreement with that premise. If the domestic position has changed and that premise is to be repudiated, it is Parliament which must make that decision. That courts are taking it upon themselves to do so is remarkable.

The claimant is now considering an application to the ECtHR.